Re-evaluating the test for the transfer of care proceedings

Re-evaluating the test for the transfer of care proceedings

Family analysis: When should care proceedings be transferred to a ‘better placed’ court in another Member State? William Tyler QC, of 36 Bedford Row and Park Square Barristers, examines the Supreme Court’s approach to that question in Re N (Children) (Jurisdiction: Care Proceedings).

Original news

Re N (Children) (Jurisdiction: Care Proceedings) [2016] UKSC 15, [2016] All ER (D) 71 (Apr)

The Supreme Court allowed an appeal by the children’s guardian and the local authority against a decision that the Hungarian court was better placed to hear a case regarding two children and that transferring the case to Hungary would be in the children’s best interests. The children were Hungarian nationals born in the UK to Hungarian parents. The transfer request would be set aside and the case would be returned to the Family Division.

What was the case about?

Two Hungarian Roma children were the subject of care and adoption proceedings in England. The mother’s application for a request to be made that the case be transferred to Hungary was only eventually decided after the judge had heard all of the evidence but before he gave his final welfare judgment. He decided to make the request of the Hungarian courts. If accepted, this would have had the inevitable effect that not only would the case be immediately transferred to Hungary, but so would the children, who had by that time been living for a considerable time with an English-speaking foster carer who wished, with the support of the local authority, to adopt both children.

What were the issues in the appeals?

In November 2015, the Court of Appeal handed down a mammoth and wide-ranging judgment, running to 192 paragraphs in Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2015] All ER (D) 32 (Nov).

That judgment dealt with:

  • the basis for, and guidelines in relation to, the non-consensual adoption of foreign children in English courts
  • whether requests under article 15 of Regulation (EC) 2201/2003 (Brussels II bis) for the courts of other EU Member States to assume jurisdiction can be made in care and/or adoption proceedings
  • if so, the correct interpretation of the criteria of Brussels II bis, art 15
  • the use (and misuse) of section 20 of the Children Act 1989
  • the unacceptable lack of judicial continuity in the High Court

The appeal to the Supreme Court dealt only with one small part of this—ie the question of the Brussels II bis, art 15 conditions. In particular, whether the judge was right to decide that the Hungarian courts were better placed to hear the case and that he was not entitled to consider the impact on the children of moving to Hungary when considering whether to make the transfer request.

How did the Supreme Court approach Brussels II bis, art 15?

The Court of Appeal had previously decided that Baroness Hale’s description of the appropriate way in which to approach Brussels II bis, art 12 (prorogation of jurisdiction) should apply equally to the correct treatment of Brussels II bis, art 15. This was subsequently described in various High Court and Court of Appeal judgments as an ‘attenuated welfare test’. Specifically, it had been decided that the court was not entitled to take into account that different placement options might or might not be available in different countries (eg it was not a reason to decline to make a transfer request that the receiving country, unlike England, would not be able to impose a non-consensual adoption on resistant parents).

In the current case, HHJ Bellamy, applying this test, decided that he was not entitled to consider the impact on the children of moving from the foster placement in which they were settled. The judge had said that this factor was relevant to the forbidden question of what outcome to the proceedings would be in the best interests of the children but not to the question of whether transfer of the case to Hungary would be in the children’s best interests. He also decided that, mainly because the Hungarian courts would be better able to assess and implement contact with full and half siblings living in Hungary, they were better placed than the English court to hear the case.

The Supreme Court did not agree with either of these decisions.

The question as to whether the transfer would be in the best interests of the children is, according to Baroness Hale, different to the question of what eventual outcome is best for the children. However, this does not mean that the test is ‘attenuated’. It is impossible to be definitive in relation to the relevant factors, which will vary from one case to the next. However, there is no reason to exclude from consideration the short or the longer term impact of a transfer itself on the children’s welfare. The consequences both on the children (here a move to a different country) and on the choices available to the court (here removal of the possibility of choosing the English placement in preference to the Hungarian one) are clearly relevant factors when considering an application under Brussels II bis, art 15 and whether the transfer would be in the best interests of the children. Accordingly, the judge and the Court of Appeal got this wrong and the appeal was successful.

The Supreme Court was also clear that in this case the Hungarian court was not better placed to hear the case. The judge had heard the evidence and the submissions and was—at the point he sought to transfer the case—fully able to choose between all options, including adoption, special guardianship or foster care in England, and also parental, family or institutional placement in Hungary.

What did the Supreme Court say about the question of non-consensual adoption of foreign national children?

Very little. Most of the issues raised in the Court of Appeal judgment were not litigated in the Supreme Court, so on those questions that judgment remains valid.

Baroness Hale agreed with the Court of Appeal that the question of whether the foreign country would recognise any British adoption would be one of the relevant factors to take into account at the point of deciding, not whether to transfer the case, but what ultimate outcome is in the children’s best interests.

What is the wider impact of the Supreme Court judgment?

This judgment has corrected a misapprehension which had crept into the jurisprudence of the higher courts and has refocused the test simply on the actual words of Brussels II bis. The consequence is likely to be that fewer cases are transferred than has been the case in the last two or three years.

This in turn is likely to lead to there being more cases in which it is argued that—even though the English courts should decide the issue—the appropriate final welfare outcome is for the placement of foreign children in their country of origin, whether with parents, family members or even institutional carers. This has always been a permissible outcome, even if the legal ramifications are sometimes a little complicated.

The difficulty for parents with this course is that it will often be raised against them at this advanced stage of proceedings that a status quo has been established which should not be disturbed. For reasons simply of necessity, Eastern European children are almost inevitably placed in foster homes in which the language of their country of origin is not spoken (a particular problem in the case of Romani-speaking children) and inevitably an attachment is established over time between child and foster carer. There is a continual tension between the immediate impact on a child of a move and the importance of growing up in, and so enjoying, the language and culture of the country of one’s origin.

How do other EU Member States approach the issue?

There is very little jurisprudence in other European countries on Brussels II bis, art 15. It is important to note, however, as the Supreme Court did, that the European Court of Justice has accepted a reference from the Irish Supreme Court on whether Brussels II bis, art 15 applies at all to public law care proceedings, and, if so, what factors can be treated as relevant to best interests in that context. The judgment is due later this year, and will of course bind the English and Welsh courts regardless of the Supreme Court judgment, so there may well be more change coming.

William Tyler QC is a specialist children law silk and was leading counsel for the respondent mother in this appeal.

Interviewed by Robert Matthews.

The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.

This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.

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